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Posted 16 June 2016
by Stephen Jennings

LinkedIn and Your Business – How to Avoid Legal Pitfalls



With over 400 million members, LinkedIn has become one of the most popular social media websites in the world. If used properly it can be a great tool to promote your business, provided you have anticipated the potential downsides. This article considers some of the potential employment law issues associated with having a LinkedIn account, and offers advice as to how you can reduce the risk to your business.

Who owns contacts?

LinkedIn can be a great way for employees to connect with potential customers – but what happens when an employee leaves, taking their connections with them? The question of who ‘owns’ LinkedIn connections is not clear and there can be particular difficulties where a business has invested time and effort in creating a comprehensive list of connections.

LinkedIn terms and conditions state that ownership of an account remains with the individual. However English Courts have partly disregarded this where ‘confidential information’ is involved; for example client lists. In the case of Whitmar Publications Limited v Gamage, three employees resigned from their employment with Whitmar to undertake a competing business. Whitmar claimed that the ex-employees had used a LinkedIn group, which one of them had managed on behalf of Whitman, to source email addresses for a press release about their new business. The Court required the employees to give Whitmar exclusive access, management and control of the LinkedIn group. Whilst this decision is helpful, there has been very little case law in this area and few employers will want to pay the legal expenses of this sort of claim.

Content control

Followers of the American Red Cross Twitter page were surprised to receive a tweet stating “when we drink we do it right #gettngslizzerd” which was caused by an employee confusing her private and her work Twitter accounts. While this sort of social media mishap is mercifully rare, it serves as a reminder that employers are in the firing line if something goes wrong. Even where an employee posts comments on their own account, you, as an employer, could be liable if they are considered to be discriminatory. In particular, under the Equality Act 2010 an act done by a person “in the course of their employment” is treated as having been done by their employer unless the employer can show that they took reasonable steps to prevent the action.

A similar issue may arise where an employee posts derogatory comments about the company on their own LinkedIn page. In Walters v Asda Stores an employee was alleged to have posted a comment on her personal social media account: “although i’m supposed to love our customers hitting them in the back of the head with a pic axe would make me feel far more happier heheh”. Asda dismissed, but lost the subsequent Employment Tribunal case as the Tribunal thought dismissal was too harsh a sanction.

Top Tips

It is easy to read these cautionary tales and be put off using LinkedIn and other social media for your business. But employers who have a well thought-out strategy when using LinkedIn can find it an extremely valuable marketing tool and there are steps you can take to reduce the risk to your business and to ensure that you get the most out of it:

  • Have a clearly worded social media policy setting out the company’s expectations for employees’ use of social media and stating that online conduct harmful to the company can amount to misconduct or gross misconduct – it can be very difficult to take action if you haven’t actually laid down rules
  • Ensure that employees are aware of this policy and consider implementing training to run alongside the written policy
  • Even if you are not planning to use LinkedIn yet, sign up your business to avoid anyone else taking the name and causing confusion
  • Be clear as to what extent employees can access such sites, and when, including business and personal use
  • Be clear who has authority to post on a LinkedIn account and when. Should all posts be pre-authorised?
  • Consider requiring employees to limit contacts to a dedicated work LinkedIn account (rather than their own private account)

Finally, the importance of having a clear social media policy and disciplinary procedure when things do go wrong was demonstrated by an Employment Tribunal in the matter of Crisp v Apple Retail (UK) Ltd. In this case, Mr Crisp was employed by Apple and posted derogatory comments on social media about an Apple app which had mistakenly woken him up at 3am. He was subsequently dismissed and brought a claim for unfair dismissal. The Employment Tribunal held that the dismissal was fair, and it was critical to the decision that Apple had made it clear in its policies and associated training that protecting its image was a “core value” and commenting about Apple’s products on social media was prohibited and likely to constitute gross misconduct.

So, if you have a properly thought-through social media policy in place, you can safely let LinkedIn do what it is designed to do by promoting your business, rather than undermining it.

 

 

Further information

For further advice on any of the issues raised in this article, contact our specialist employment team on 01392 207020 or e-mail employment@tozers.co.uk

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About the author

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients